Page Two

By Edward F. Mitchell in San Francisco - 15 April 2013

3. You have said that legalization of homosexual
marriage is in some way the same as, or in an important way analogous
to, the legalization of male breast-feeding. You further have explained
that you made this remark to underline/emphasize the "unnaturalness" of
homosexual marriage, in the same way, I suppose you meant, that male
breast-feeding is unnatural. Having been asked to reconsider this
statement and possibly to apologize for it, you have said that you have
considered it further, that you think it is a correct, logical, and
germane point to make, and that you have no apology to offer for
it. I am puzzled, first of all, by the factual assertion implicit
in your statement  i. e., that breast-feeding by males is illegal, and
that a proposal to make it legal therefore is analogous to the proposal
to make same-sex marriage legal. But I am unaware of any law
against male breast-feeding, in our society or in any other, and, so far
as I know, there can be no meaningful proposal to legalize something
that is not illegal or about to become illegal.

San Francisco, for example, has no ordinance
prohibiting me from keeping the Pacific Ocean or Siberia in my
garage.

I also am puzzled by the logic of your analogy. If you want to
say that if a male could breast-feed a child you would
outlaw the practice (as your analogy suggests), then what is it about
the "unnaturalness" of such hypothetical male breast-feeding that would
warrant its prohibition  is it the same "unnaturalness" that should
counsel us to ban same-sex marriage? Would you or the Church, on
the ground of unnaturalness, withhold from a hungry infant milk that, by
whatever medical miracle or Act of God, came from a male breast, and why
would one want to do that?

The analogy and logic also both seem confusing or less than apt for a
third reason: for all practical purposes, male breast-feeding is not
possible, so there is no practical reason to legislate against it.
There is no movement by fundamentalists to ban male breast-feeding, it
would seem, because no one is doing it and, so far as I know, no one
can. San Francisco, for example, has no ordinance prohibiting me from
keeping the Pacific Ocean or Siberia in my garage. But it is precisely
because homosexuals are getting married that you have become
alarmed and militant in the very florid and, some have said, strident
expression of your views on the subject. It was the actual issuance of
very real California marriage licenses to same-sex couples, and the
stark reality of same-sex marriage ceremonies, that sparked the movement
to ban same-sex marriage in California by referendum and, I would infer,
caused you to throw your weight and that of the Catholic Church so
strenuously behind Proposition 8, now before the United States Supreme
Court. You are fighting against real, committed same-sex couples and
against the prospect of more real same sex-marriages. Is this not very
different from legislating against theoretical male breast-feeding,
something that does not exist and is, for all presently practical
purposes, impossible?

4. You have said that if homosexual marriage is
permitted there is no principled distinction to draw between the
marriage of two homosexuals of the same sex, on the one hand, and the
marriage of many homosexuals within the same marital union, on the
other. In this, it seems, you share the concerns of former Senator
Santorum, who has prophesied that same-sex marriage will open the door
both to polygamy and, as he puts it with his usual élan, to
man-on-dog sex. (I hope you would agree that the logical or
practical connection between same-sex human marriage and man-on-dog sex
is elusive. Although bestiality has existed in nature for
millennia, and actually is quite prevalent  much more than is generally
recognized or publicly acknowledged  throughout the American South and
Midwest, I am unaware of inter-species sex ever leading to any
inter-species marriage, or the other way around, nor am I aware of any
moral framework within which heterosexual bestiality is treated
differently from homosexual inter-species sex. Although Senator
Santorum sees a causal link between same-sex human marriage and
bestiality, evidence of the link is hard to come by, and it is difficult
to follow his reasoning.)

Your assertion of a causal link between same-sex marriage and
polygamy begs the question: what is it about a same-sex marriage that
may make it more conducive to multiple parties than would be an
opposite-sex marriage? My understanding is that polygamy, common in
the Old Testament, in pioneer Utah, and more common among Christian
fundamentalists than among the general population, has been almost
exclusively a heterosexual phenomenon and most prevalent among intensely
religious participants. One does not read or hear about homosexual
polygamy, undoubtedly in part because if a homosexual cannot marry one
other homosexual of the same sex, he/she cannot marry many of them in
the same union. But your central point that eludes my understanding
is: what is it about a same-sex marriage that would lend itself to
polygamy more readily than would a heterosexual, opposite-sex marriage?
What evidence do we have that this is the case?

5. You have said that legalization of same-sex
marriage will damage the institution of marriage, especially by
weakening the incentives for heterosexuals to marry one another. I
have had no success at all in locating the factual or logical
foundation(s) for this proposition. Is there evidence that heterosexuals
marry one another less frequently in jurisdictions that recognize
same-sex marriage than in jurisdictions that prohibit it? Is there
evidence that the rate of heterosexual marriage drops to a statistically
significant degree in jurisdictions that legislate the legality of, or
judicially recognize, same-sex marriage, and that these reduced rates of
heterosexual marriage are causally attributable to the permission
extended to homosexuals to marry members of their own sex? I have
searched for any evidence of these phenomena and have found none at
all.

Quite apart from the apparent absence of any empirical evidence that
an increase in same-sex marriage is accompanied by and causes a
reduction in opposite-sex, heterosexual marriage, I am unable to find in
your own writings, speeches, and interviews an explanation as to why it
should be expected that your hypothesis (or unsupported statement of
fact) would be borne out in the event.

Let us postulate a heterosexual couple in love and wishing to marry,
even planning to marry. After their engagement, the jurisdiction in
which they live enacts legislation permitting members of the same sex to
marry one another. You tell us we should expect our affianced
heterosexual couple to call off their engagement and cancel their
wedding. Assuming (without evidence, but for arguments sake) that
this would be so, why would they do this? If we could approach and
question young heterosexual, opposite-sex couples who had made this
decision and ask them why the legalization of same-sex marriage had
caused them to rethink and cancel their own, how would they answer?
Would they say that they do not want to participate in an activity or
take on a status which homosexuals also are permitted? If so,
would they, on this ground, also decide against going to a baseball
game, or against dining in a good restaurant, or against acquiring a
drivers license, or against taking a college degree, or against
entering a profession (law, medicine, or the clergy)?

Have you explained or can you or other opponents of same-sex marriage
explain why heterosexual marriage would decline in the face of lawful
same-sex marriage, and how opposite-sex newlyweds-to-be would account
for their changes of heart?

There is, too, another, less quantifiable, consideration that would
seem to stand in counterpoint to your hypothesis  it is the notion,
emanating in modern form from the Enlightenment but with its roots in
both classical antiquity and the Judeo-Christian tradition, that the
diminishment of one man or woman is a diminishment of humankind.
The idea, of course, has been variously expressed ("If a clod be washed
away by the sea, Europe is the less", from so authentically devout an
Anglican as could write, "That I may rise and stand, oerthrow me, and
bend/Your force to break, blow, burn and make me new") and finds its
jurisprudential manifestation in the United States in the homage we pay
to universal due process and equal protection of the law. If this
important theme in Western civilization has truth value or practical
meaning, would it not suggest that a prohibition of civil marriage
that runs specially/only against an identifiable class of citizens based
solely on their status also might pose a hazard to the institution of
marriage, perhaps even a greater danger than that certain opposite-sex
couples might decide not to marry if same-sex couples are permitted
to?

The evidence of my experience is purely anecdotal, of course, but I
have known many, many married heterosexual couples, and it would not
have occurred to one of them to decide not to marry because two people
of the same sex down the hall, or down the block, or across town could,
or had decided to, marry. Is it possible that the rule of celibacy
plays a role with respect to this difference in perception  that is,
that Catholic priests in particular may in many cases lack personal
familiarity with the ordinary motivations that powerfully carry couples,
both heterosexual and homosexual, into marital commitment with so little
attention to who else is getting married? Have you actually
encountered in your pastoral work young couples who called off their own
weddings because a same-sex couple had wed somewhere? If so, did
you concur in or bless their judgment to forego a life of committed
intimacy, perhaps the greatest gift a human can enjoy, because of what
someone else did or was at least permitted to do in Ottawa or Oslo, or
in Madrid or Capetown, or in His Holiness Francis Is home town of
Buenos Aires, or in the Sodom and Gomorrah of the American colonies,
Boston and Springfield? (I note that Massachusetts, the first
American jurisdiction to recognize same-sex marriage, recently has had
the lowest divorce rate among the several states; what might this say
about the direct correlation you assert between the lawfulness of
same-sex marriage and a general retreat from opposite-sex
marriage?)

6. Among those in the Catholic Church hierarchy who
believe that homosexual sex (not to mention marriage) is unnatural, is
there also a belief that celibacy is natural in a way that homosexuality
is not? If so, upon what ground/criterion would the
differentiation rest? Since celibacy is rare (apparently more so
among the Catholic priesthood, and even the Church hierarchy, than
we previously had supposed), it cannot be the usualness or predominance
of celibacy that would render it "natural." If rarity renders a
practice "unnatural," why would not celibacy be at least as unnatural
(since less common) as homosexuality, and if rarity is not the criterion
by which unnaturalness is discerned, then what are the factors that
render one less-common practice "unnatural" while the other remains
simply "rare"?

This conundrum seems to be complicated by the fact that the
naturalness of heterosexual marriage is inextricably bound up, in your
own and many others logic and rhetoric, with procreation. But if one
must procreate to be natural, are not priests and bishops who actually
do practice celibacy then, in some sense, engaged in "unnatural"
practices?

And what of heterosexual marriage in which the spouses cannot, or
have no intention to, procreate  should such marriages be
illegal? Would it not logically follow that vasectomies, hormonal
therapies, and other forms of birth control should be illegal under the
civil law, like homosexual marriage and male breast-feeding, and not
merely condemned by the Church alone? Does the Church or do you
take the position that birth control should be illegal under civil law
because it interferes with procreation, as does same-sex homosexual
marriage? Or, as one of the Justices asked counsel in oral
argument last month in the California Proposition 8 Supreme
Court oral argument, should marriages between persons over the age of 55
be prohibited under the civil law and condemned by the Church on the
ground that the statistical likelihood of procreation within such
marriages is, both as a matter of demographic/population policy and in
light of the Churchs understanding of the very purpose of marriage,
intolerably low or non-existent?

7. I noticed that you recently told an assembly
outside the United States Supreme Court that only a man can be a father;
that only a woman can be a mother; and that each child has the right to
both a mother and a father. These truths, you said, require a civil
prohibition of same-sex marriage. I take it that you were not asserting
that there is a legal right to opposite-sex parents because an American
child, of course, does not, in fact, have an enforceable legal right to
a mother and a father. If she did, she could, through a guardian
ad litem, intervene in her parents divorce proceeding to
prevent dissolution of her parents marriage, or could commence a
proceeding in equity to compel a single parent to marry. So, in the
absence of such a legal right (which, under current Constitutional and
federalism jurisprudence either would have to newly-emanate from each
state or be established by a federal Constitutional amendment), what are
the source(s) and nature of a childs right to a mother and father, and
when should these rights come into existence? If creation, recognition,
and protection of such rights are the real justification for prohibition
of same-sex marriage, do you also argue for an outright ban in the civil
law against divorce of opposite-sex parents during the childhood of
their offspring, and for the prohibition of single parenthood until
children reach majority? If you seek to create or vindicate a
perceived right in all children (and your pronouncements on this subject
seem to extend this right to possible, yet-to-be-conceived "children" as
well as to real ones), why do you select only one condition or
circumstance (same-sex marriage) that might lead to child-rearing by a
parent or parents who are not a mother and father of opposite sex?
Should two divorced or widowed heterosexual fathers or mothers, for
example, each with custody of a child from his or her previous
opposite-sex marriage, be prohibited from living in the same home and
raising their children together if both parents are male or if both are
female?

Very truly yours,Edward F. Mitchell

Photo: Archbishop Salvatore J.
Cordileone

Edward F. Mitchell is a practicing attorney in San
Francisco. He holds an A. B. degree from Yale College and a J. D.
degree from Boston College Law School. He is experienced in federal
Constitutional litigation and appeals of Constitutional questions in the
federal judicial system, and has successfully briefed and argued appeals
in the United States Courts of Appeals for the Ninth and Tenth Circuits.
Mr. Mitchell is general counsel for
Culturekiosque.